April 12, 2013

Judge: DOJ Victory a 'Warning, Not an Invitation'

A federal appeals court in Washington today unanimously overturned the suppression of evidence in a drug trafficking case, giving the government a second chance. But one judge on the panel cautioned that the U.S. Justice Department and police should not celebrate.

"[W]hile the government ultimately prevails, its victory should be looked upon as a warning, not an invitation," Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit said in the court's ruling. "We have found probable cause by only a hair’s breadth."

The issue in the case: whether an officer's alleged false statements in a search warrant affidavit doomed the entirety of the warrant and, as a result, all the stuff the police seized.

The lawyers for the defendant, a man named Jared Cardoza, successfully argued in the trial court that a District of Columbia police officer lied in the affidavit about certain visual observations of Cardoza and certain statements he allegedly made.

U.S. District Judge Amy Berman Jackson in May said prosecutors could not use cocaine and gun evidence against Cardoza, who was charged in U.S. District Court for the District of Columbia in late 2011. Jackson determined the officer made the false statements with, as it’s described in the D.C. Circuit ruling, "reckless disregard for the truth."

The remaining portions of the affidavit, Jackson concluded, didn't give the authorities sufficient cause to search Cardoza's apartment in Northwest Washington under the belief that he was a drug dealer.

The appeals court today overturned Jackson. Writing for the panel, Judge Brett Kavanaugh said that even with the four false statements removed, the rest of the affidavit provided enough evidence to support the search of Cardoza’s apartment.

"Although the question is close, we conclude that the remaining uncontested portions of the officer’s affidavit established a 'fair probability' of finding evidence of drugs in Cardoza’s apartment," Kavanaugh said. (Chief Judge Merrick Garland was also on the panel.)

Cardoza's attorneys, including Howard Katzoff, who was court-appointed, argued the search warrant affidavit failed to show sufficient direct evidence of drug trafficking or drug possession. The D.C. Circuit panel didn’t agree. The police found a distribution-level amount of cocaine in the car where Cardoza had been seated, the appeals court said.

Probable cause, Kavanaugh said, pointing to the U.S. Supreme Court decision in Florida v. Harris in February, requires a "fair probability." The standard, the judge said, was satisfied in the search warrant affidavit.

Brown, who wrote the warning to prosecutors and the police, agreed with the decision to overturn the trial judge. She wrote separately, however, to stress her bigger point.

"Efforts to establish probable cause based on affidavits less substantial than the corrected and qualified affidavit now before this court are unlikely to inch over the threshold," she said.